Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Neil J. Wilkof, Annsley Merelle Ward, Darren Smyth, Nicola Searle, Eleonora Rosati, David Brophy, Alberto Bellan and Merpel, with contributions from Mark Schweizer. You're welcome to read, post comments and participate. You can email the Kats here

From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Sunday, 22 March 2015

The way one looks can be the source of many things: it can sometimes inspire certain impalpable feelings one may be (yet) unable to describe ("And I can't explain / But it's something about the way you look tonight / Takes my breath away / It's that feeling I get about you, deep inside /And I can't describe"), but also evoke less pleasant sensations.

The latter seems particularly true when alleged IP infringements (a topic that clearly awakes the deepest and truest sense of justice inside anyone) are possibly at stake. This is indeed what happened earlier this week during an episode of The X Factor - New Zealand edition, as Katfriend and IP lover Nedim Malovic (University of Southampton) promptly told this Kat (Katpat to Nedim!).

One of the judges [now "former": she was sacked together with her fellow-judge and husband, Willy Moon after this IP-related episode] of this popular TV programme, singer Natalia Kills, told one of the contestants, Joe Irvine [you can watch his performance here], that - as someone who values intellectual property - she was "disgusted" at how much he had copied her husband's style.

At first sight this Kat was unable to spot any immediate resemblances between the Michael Bublé-lookalike contestant [Italian readers who followed the latest MasterChef edition might be also able to spot a striking resemblance with contestant Nicolò] and Willy Moon who, in this Kat's opinion, if nothing else was possibly inspired in his style by Jude Law's character in A.I. - Artificial Intelligence.

... to Willy Moon

It looks like in recent times imitating one's style has been increasingly perceived less as a form of flattery, and rather more like a plain infringement of one's own rights. A few weeks ago this blog wrote of an Italian decision concerning unauthorised evocation (so not even use) of Audrey Hepburn's image in an advertisement [although it looks like not all Italian ad-men have read the decision ...]. More recently, Kim Kardashian's change of hair colour prompted outraged comments by Serbian pop star Jelena Karleusa, who accused the queen of selfies and belfies of copying her style.

In all this, the question becomes whether and to what extent one could possibly feel "disgusted" - at least in an IP sense - at seeing someone whose style is perceived as non-authentic.

Like in many other things, the response depends on what country is considered.

If one takes the case of the US, regulation of the use one's own image is not a matter of federal law there, so individual states are free to determine the degree of protection afforded, with California ranking very high thanks to its Celebrities Rights Act, currently Civil Code section 3344[speaking of California, readers might remember the case, eventually settled, concerning unauthorised use of the image of a 1950s "ravishing red-haired beauty" in the opening credits of this Kat's favourite TV series ever, ie Mad Men].

... to X-Factor contestant Joe Irvine ...

Somehow similarly to the US, in the EU image rights have not been harmonised to any particular extent, with the effect that there are Member States that actually recognise and extensively protect them, eg France and Italy, and others in which image rights are not generally acknowledged by the law.

The latter is the case of the UK, in which there is no such thing as image rights. This was confirmed by both the High Court[here] and the Court of Appeal of England and Wales[here] in the Rihanna/Topshop litigation concerning unauthorised use of the image of former in a T-shirt sold by the latter. Similarly to Birss J, Kitchin LJ stated that [t]here is in English law no "image right" or "character right" which allows a celebrity to control the use of his or her name or image". As such, currently the main type of protection against (mis-)use of one's own image in a commercial setting is the law of passing off and its (fairly) strict requirements.

.. via MasterChef Italia's Nicolò

Ignoring what the law is in New Zealand [so any insights from readers would be very welcome!], Merpel wonders what would happen should someone like Willy Moon decide to take action against an X-Factor contestant who allegedly looks like him? Probably not much in the UK, since passing off would possibly not apply here, especially because the misrepresentation requirement does not appear met.

How about image rights-friendly countries like, say, Italy? Article 10 of the Italian Civil Code prohibits unauthorised use of one's own image. From a literal interpretation of the law it would appear that this provision would be only applicable should one use the actual image of a third party. However, Italian courts have been fairly generous [or rather, creative?] in their interpretations, so that even evoking one's own image (without the need of using the actual image) has been considered an infringement of Article 10. So, who knows, perhaps Willy Moon could actually land successfully together with his case before an Italian court. So, similarly to a past Kat-plea, it is again time to invite someone to start proceedings in Europe? If so, then #willycometoitaly!

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